AS TO THE ADMISSIBILITY OF
Applications nos. 11054/03, 11077/03,
11092/03, 11096/03, 11101/03, 11111/03, 11241/03, 11248/03, 11254/03,
11260/03, 11265/03, 11271/03, 11281/03, 11292/03, 11297/03, 11299/03,
11302/03, 11305/03, 11309/03, 11312/03, 11316/03, 11318/03, 11320/03,
11324/03, 11329/03, 11334/03, 11336/03 and 11337/03
by Halit ÇİÇEK and Others
The European Court of Human Rights (Third Section), sitting on 30 March 2006 as a Chamber composed of:
Mr B.M. Zupančič, President,
Mr J. Hedigan,
Mr L. Caflisch,
Mr R. Türmen,
Mr C. Bîrsan,
Mrs A. Gyulumyan,
Mrs R. Jaeger, judges,
and Mr V. Berger, Section Registrar,
Having regard to the above applications lodged in 2002,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the cases together,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
The applicants, whose names appear in the appendix, are Turkish nationals. They are represented before the Court by Mr H. Kaplan, a lawyer practising in Istanbul.
A. The circumstances of the cases
The facts of the cases, as submitted by the parties, may be summarised as follows.
1. The applicants’ version of the facts
Until 1994 the applicants lived in Hamzabey, a hamlet of Baharlar village, in the district of Lice, in Diyarbakır province, where they own property. It is to be noted that Selam Çiçek and Ramazan Atalay did not submit their authority forms.
In May 1994, following the incidents that took place in the district of Lice, security forces arrived in Hamzabey and forcibly evicted the applicants from their hamlet.
On 25 March 1996 the mayor of Baharlar village, Mr Sait Polat, filed petitions, on behalf of the applicants, with the offices of the Prime Minister, the Ministry of the Interior, the Lice District Governor and the State of Emergency Governor requesting permission to return to their hamlet.
On 10 February 2000 the mayor of Baharlar village filed petitions, on behalf of the applicants, with the offices of the Prime Minister, the Ministry of the Interior, the Lice District Governor, the State of Emergency Governor and the Ministry of Public Works and Settlement (Bayındırlık ve İskan Bakanlığı) requesting permission to return to their hamlet. He further requested the Ministry to provide aid for the infrastructure of the hamlet. He also noted that the inhabitants of Hamzabey were willing to return to their hamlet.
On 3 October 2001 the mayor of Baharlar village filed a petition, on behalf of the applicants, with the office of the Diyarbakır Governor requesting permission to return to their hamlet.
On 23 July 2002 three inhabitants of Hamzabey hamlet filed a petition, on behalf of the other inhabitants, with the office of the Diyarbakır Governor requesting permission to return to their hamlet and a solution to the problems of infrastructure of the hamlet.
It is to be noted that they did not receive any response to their petitions.
On an unspecified date three Members of Parliament, Mr Nurettin Dilek, Mr Sebgetullah Seydaoğlu and Mr Haşim Haşimi, filed petitions, on behalf of the applicants, with the offices of the Prime Minister, the Deputy Prime Minister, the Minister of the Interior, the Minister of Public Works and Settlement, the State of Emergency Regional Governor and the Diyarbakır Governor.
2. The Government’s version of the facts
The investigation carried out by the authorities indicated that the applicants had left their villages of their own will. The security forces had not forced the applicants to leave their village.
The official records indicated that there was no obstacle preventing villagers from returning to their homes and possessions in their villages. Persons who had left their villages as a result of terrorism had already started returning and regaining their activities in their villages.
Currently there was no obstacle preventing villagers from returning to their homes and possessions in their villages.
On 14 July 2004 the Law on Compensation for Losses resulting from Terrorism and the Fight against Terrorism was passed by the Grand National Assembly and entered into force on 27 July 2004 (“Compensation Law”). That Law provided for a sufficient remedy capable of redressing the Convention grievances of persons who were denied access to their possessions in their villages.
In that connection Damage Assessment and Compensation Commissions were set up in seventy-six provinces. Persons who had suffered damage as a result of terrorism or of measures taken by the authorities to combat terrorism could lodge an application with the relevant compensation commission claiming compensation.
The number of persons applying to these commissions had already attained approximately 170,000. A further 800 persons, whose applications were pending before the Court, had also applied to the compensation commissions. Many villagers had already been awarded compensation for the damage they had sustained.
B. Relevant domestic law
A description of the relevant domestic law can be found in the Court’s decision of İçyer v. Turkey (no. 18888/02, §§ 44-54, 12 January 2006) and in its judgment of Doğan and Others v. Turkey (nos. 8803-8811/02, 8813/02 and 8815-8819/02, §§ 31-35, ECHR 2004-VI).
The applicants alleged violations of Articles 8 and 13 of the Convention and Article 1 of Protocol No. 1.
The applicants contended under Article 8 of the Convention that their right to respect for their family life and home was violated as they had been forcibly displaced from their hamlets and had been prevented from returning.
The applicants maintained under Article 1 of the Protocol No. 1 that they had been deprived of their right to peaceful enjoyment of their possessions since the security forces had destroyed their houses and they had not been allowed to return to their village.
The applicants alleged under Article 13 of the Convention that they had had no effective remedy for their various Convention grievances.
A. Complaints under Article 8 of the Convention and Article 1 of Protocol No. 1
The applicants complained that their forcible displacement and destruction of their property as well as the refusal of the authorities to allow them to return to their homes and land had given rise to breaches of Article 8 of the Convention and Article 1 of Protocol No. 1, which, in so far as relevant, read as follows:
Article 8 of the Convention
“1. Everyone has the right to respect for his private and family life [and] his home...
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
Article 1 of Protocol No. 1
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
The Government raised an objection to the Court’s jurisdiction, arguing that the applicants had failed to exhaust domestic remedies as they had not availed themselves of the new remedy offered by the Compensation Law of 27 July 2004. In that connection they claimed that the mechanism which they had set up subsequent to the Doğan and Others judgment of 29 June 2004 was capable of providing redress in respect of the applicants’ complaints and offered a reasonable prospect of success.
The applicants disputed the Government’s submissions and alleged that the new remedy introduced by the compensation law could not be regarded as effective.
The Court observes that under the compensation law of 27 July 2004 it is open to persons, such as the applicants in the present case whose applications are pending before the Court, to lodge until 3 January 2007 an application with the compensations commissions in order to claim compensation for the damage they had sustained as a result of their displacement and destruction of property as well as inability to gain access to their possessions in their villages in south-east Turkey.
The Court has already examined that remedy and found it effective in respect of complaints about the alleged forced displacement and denial of access to possessions in the villages in south-east Turkey. In particular, it considered that the new remedy was accessible and provided reasonable prospects of success (see İçyer, cited above, §§ 73-87).
In the light of the above, the Court considers that there are no exceptional circumstances capable of exempting the applicants from the obligation to exhaust domestic remedies.
It follows that these complaints must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
B. Complaint under Article 13 of the Convention
The applicants complained that there was no effective domestic remedy capable of providing redress for their Convention grievances. They relied on Article 13 of the Convention, which provides:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
The Government disputed the above allegations, arguing that there were effective domestic remedies of which the applicants had failed to avail themselves.
The Court has already found that the Compensation Law does provide the applicants with an effective remedy in respect of their complaint concerning the alleged forced displacement and destruction of property as well as denial of access to their property. That finding is valid in the context of the complaint under Article 13 of the Convention.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to join the applications;
Declares the applications inadmissible.
Vincent Berger Boštjan
A P P E N D I X
List of Applicants
1. 11054/03 Halit Çiçek
2. 11077/03 Abdusselam Çiçek
3. 11092/03 Remezan Çiçek
4. 11096/03 Abdüllah Çiçek
5. 11101/03 Resul Tekin
6. 11111/03 Basri Tekin
7. 11241/03 Ali Tekin
8. 11248/03 Selam Çiçek
9. 11254/03 Ahmet Varsak
10. 11260/03 Abdullah Varsak
11. 11265/03 Ramazan Varsak
12. 11271/03 Mehmet Zeki Beyaz
13. 11281/03 Haseni Beyaz
14. 11292/03 Nizamettin Beyaz
15. 11297/03 Mehmet Beyaz
16. 11299/03 Vahap Budak and Ramazan Budak
17. 11302/03 Mehmet Budak
18. 11305/03 Dilşah Budak
19. 11309/03 Hadin Budak
20. 11312/03 Şefik Kaya
21. 11316/03 Ömer Kaya
22. 11318/03 Hadice Atalay
23. 11320/03 Latif Atalay
24. 11324/03 Sülhattin Atalay
25. 11329/03 Ömer Atalay
26. 11334/03 Ramazan Atalay
27. 11336/03 Tarık Atalay
28. 11337/03 Bahri Tekin
ÇİÇEK AND OTHERS v. TURKEY DECISION
ÇİÇEK AND OTHERS v. TURKEY DECISION